HC Sets Aside Bail, Rules Arrest Memo with Grounds is Substantial Compliance.

By | November 13, 2025
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HC Sets Aside Bail, Rules Arrest Memo with Grounds is Substantial Compliance.

Issue

Whether a bail order granted by a Chief Judicial Magistrate (CJM) is legally sustainable when it is based on the technical ground that the notice of arrest sent to a relative did not contain the detailed “Grounds of Arrest,” even though the accused persons themselves were provided with a proper arrest memo and were made aware of the grounds.

Facts

  • The DGGI registered a case against the respondents for alleged fraudulent Input Tax Credit (ITC) availment totaling over ₹16.5 crores (₹8.27 cr + ₹8.26 cr).
  • The accused persons were arrested and presented before the CJM.
  • The CJM granted bail to the accused. The primary reason for granting bail was that the notices sent to the relatives of the accused, while intimating the arrest, did not contain the detailed “Grounds of Arrest.”
  • The GST department (petitioner) filed a petition in the High Court, challenging the CJM’s bail order for non-application of judicial mind and misinterpretation of the law.
  • The department provided evidence that the accused persons (respondents) themselves were given arrest memos along with annexures, and they acknowledged receipt with their signatures, confirming that the grounds of arrest had been explained to them.

Decision

  • The High Court set aside the CJM’s order that granted bail to the respondents.
  • It held that the factual matrix showed the arresting authority had complied with all essential mandates of the law.
  • The court found that the accused persons and their families were well aware of the grounds of arrest from the moment of arrest, as evidenced by the signed arrest memos.
  • It was also noted that the accused were represented by their lawyers during the bail hearing, and therefore, they had suffered no prejudice from the technical omission in the notice sent to their relatives.

Key Takeaways

  • Substantial Compliance Over Technicality: The court prioritized substantial compliance (informing the accused of the grounds) over a technical, procedural flaw in a secondary document (the notice to the relative).
  • No Prejudice, No Vitiation: A procedural lapse (like an omission in a relative’s intimation letter) that does not cause any actual prejudice to the accused’s legal defense is not a valid ground for a court to grant bail.
  • Arrest Memo is the Key Document: The primary document is the arrest memo provided directly to the accused. If this memo, along with its annexures, contains the grounds and is acknowledged by the accused, the statutory requirement is met.
  • Review of Lower Court’s Order: A bail order passed by a lower court (like a CJM) can be set aside by a High Court if it is found to be based on a clear misinterpretation of law and a non-application of judicial mind to the facts on record.
HIGH COURT OF GAUHATI
Union of India
v.
Shashi Kumar Choudhary*
ANJAN MONI KALITA, J.
Crl. Rev. P. No. 224 of 2025
SEPTEMBER  24, 2025
S C Keyal, Kaushik Jain, M Deka and Ms. Nituma, Advs. for the Petitioner. Vinay Shraff and P Das, Advs. for the Respondent.
JUDGMENT
1. Heard Mr. S. C. Keyal, learned Standing Counsel, Directorate General of Goods and Services Tax Intelligence, Union of India, appearing for the petitioner. Also heard Mr. B. Shraff, learned counsel, representing the respondents.
2. This application has been filed under Section 438 read with Section 528 and Section 442 of the BNSS, 2023, assailing the order dated 07.06.2025, passed by the learned Chief Judicial Magistrate (CJM), Kamrup (M), Guwahati, in connection with Case No. DGGI/INV/GST/1208/2025, granting bail to the accused persons (the respondents), vide order dated 07.06.2025 for not mentioning of the heading “Section 47 of BNSS” in Ground of Arrest and “Section 48 of BNSS” in the Notice to the Relative, as well as for not providing the Grounds of Arrest to the relative of the respondents.
3. The case as has been projected in the petition is that the respondent no. 1 (Sashi Kumar Choudhury) is involved in fraudulent availment of Input Tax Credit (ITC) of Rs. 8.27 crores during the financial year 2024-2025 in the name of the firm, namely, M/s S. K. Enterprise and the respondent no. 2 (Ankit Choudhury) is involved in fraudulent availment of ITC of Rs. 8.26 crores during the Financial Year 2024-2025 in the name of the firm, namely M/s Ankit Enterprise. A case was registered under Section 132 (1) (c) of the Central Goods and Services Tax Act, 2017 (CGST Act of 2017) and the accused persons were arrested on 05.06.2025 in connection with Case No. DGGI/INV/GST/1208/2025 on allegations of fraudulent availment of ITC amounting to Rs. 8.27 crores and Rs. 8.26 crores respectively. The respondents were arrested at Kolkata, West Bengal and were produced before the learned CJM, Barasat, Kolkata, West Bengal, on 06.06.2025. The learned CJM, Barasat, Kolkata, West Bengal, while rejecting the bail, allowed the transit remand for two days to enable the Investigating Agency to produce the respondents before the learned CJM, Kamrup (M) at Guwahati. The bail applications filed by the respondents were, thus rejected by the learned CJM, Barasat, Kolkata and the respondents were produced before the learned CJM, Kamrup (M), Guwahati, on 07.06.2025. The respondents filed a bail application on 07.06.2025 before the learned the CJM, Kamrup (M), Guwahati and the learned CJM, vide it’s order dated 07.06.2025, was pleased to grant bail to the respondents on the ground that the Grounds of Arrest, in writing, was not provided to the relative of the accused persons at the time of their arrest and thereby, violated the constitutional mandate of the Hon’ble Supreme Court laid down in cases of 1) Prabir Purkayastha v. State (NCT of Delhi)  SCL 1 (SC)/(2024) 8 SCC 254 and 2) Vihaan Kumar v. State of Haryana 2025 SCC OnLine SC 269.
4. Being aggrieved by the order dated 07.06.2025, the petitioner has filed this instant petition for setting aside of the aforesaid order, on the ground that the Investigating Agency has complied with all the provisions under the CGST Act, 2017 as well as the BNSS, 2023, while arresting the accused persons (respondents).
5. Mr. S. C. Keyal, learned counsel appearing for the petitioner submits that the learned CJM, Kamrup (M), Guwahati, while granting the bail to the respondents has committed a mistake in law by placing undue reliance on the alleged technical lapse regarding non mentioning of the heading “Section 47 of BNSS” in the Ground of Arrest and “Section 48 of BNSS” in the Notice to the Relative, despite the fact that all essential requirements and mandates under Sections 47 and 48 of the BNSS were complied with.
6. The learned counsel for the petitioner submits that the respondents were duly provided with the Arrest Memos, Authorizations of Arrests which included “reasons to believe” and “Grounds of Arrest” at the time of their arrests. He further submits that an intimation of arrest was also handed over to the relative (the wife of the respondent no. 1 who is also the mother of respondent no. 2) as named by the respondents, so as to comply with the mandates of Section 48 of the BNSS, 2023. He submits that in the intimation of arrest there was clear mention that the respondents had been arrested in connection with evasion of CGST by way of availment of ineligible ITC. He further submits that the whole proceeding was carried out under the audio-video recording in presence of other family members of the respondents.
7. The learned counsel for the petitioner submits that absence of specific headings in the Arrest Memos as well as in the Notice to the Relative have not violated any provisions of law and thereby, has not vitiated the arrest process. He submits that when the substances/the contents were available in the aforesaid Arrest Memos and Notices to Relative, which complied with the mandates of the aforesaid Sections 47 and 48 of the BNSS, non mentioning of the Sections of BNSS as the headings of those Arrest Memos and Notices to the Relative had not caused any prejudice to the respondents. Therefore, he submits that the learned CJM, Kamrup (M), Guwahati has committed a grave error by granting bail to the respondents on the aforesaid grounds.
8. The learned counsel for the petitioner submits that the relative of the respondents have been given the notices under Section 48 of BNSS, providing the reasons of arrest of the respondents. Therefore, he submits that there is no violation of Section 48 of BNSS as held by the learned CJM, Kamrup (M), Guwahati, in it’s order dated 07.06.2025.
9. The learned counsel for the petitioner submits that the learned CJM, Kamrup (M), Guwahati, has failed to appreciate the seriousness of the offences and the possibility of tampering with evidence and influence the witnesses, if the respondents remain enlarged. He submits that such economic offences due to their deep-rooted conspiracies and significant impact on public funds must be treated with greater severity in bail matters, keeping in mind the nature of accusation, strength of evidence and public interest.
10. The learned counsel for the petitioner submits that the respondents have been failing to submit documents and data so required by the Investigating Agency and thereby, causing delay in the investigation. He submits that summons have been issued to the respondents for their appearances on different dates, however, the respondents have not submitted any documents till date. He further submits that the actions on the part of the respondents clearly show their non-cooperation with the Investigating Agency.
11. To strengthen his argument, the learned counsel for the petitioner has relied on the case of Radhika Agarwal v. Union of India  GSTL 225 (SC)/(2025) SCC OnLine SC 449. He relied on Paragraph-12 of the aforesaid judgment wherein, the Hon’ble Apex Court has held that the specific Acts are enacted to achieve specific purposes and objectives and the power of judicial review in cases of arrest under such Special Acts should be exercised very cautiously and in rare circumstances to balance individual liberty with the interest of justice and of the society at large. The Hon’ble Apex Court held that any liberal approach in construing the stringent provisions of the Special Act may frustrate the very purpose or objective of the Acts. It may be relevant herein to reproduce Paragraph-12 of the concurring judgment authored by Hon’ble Bela. M. Trivedi in Radhika Agarwal’s (supra) case: –
“12. ‘It is pertinent to note that the Special Acts are enacted to achieve specific purposes and objectives. The power of judicial review in cases of arrest under such Special Acts should be exercised very cautiously and in rare circumstances to balance individual liberty with the interest of justice and of the society at large. Any liberal approach in construing the stringent provisions of the Special Acts may frustrate the very purpose and objective of the Acts. It hardly needs to be stated that the offences under the PMLA or the Customs Act or FERA are the offences of very serious nature affecting the financial systems and in turn the sovereignty and integrity of the nation. The provisions contained in the said Acts therefore must be construed in the manner which would enhance the objectives of the Acts and not frustrate the same. Frequent or casual interference of the courts in the functioning of the authorized officers who have been specially conferred with the powers to combat the serious crimes, may embolden the unscrupulous elements to commit such crimes and may not do justice to the victims, who in such cases would be the society at large and the nation itself. With the advancement in Technology, the very nature of crimes has become more and more intricate and complicated. Hence, minor procedural lapse on the part of authorized officers may not be seen with magnifying glass by the courts in exercise of the powers of judicial review, which may ultimately end up granting undue advantage or benefit to the person accused of very serious offences under the special Acts. Such offences are against the society and against the nation at large, and cannot be compared with the ordinary offences committed against an individual, nor the accused in such cases be compared with the accused of ordinary crimes”.
12. The learned counsel for the petitioner also submits by relying on the case of State of Karnataka v. Sri Darshan 2025 0 Supreme (SC) 1201, that since the Grounds of Arrest as well as the “Authorization to Arrest” were provided to the respondents at the time of arrest along with the notice to the relative, non providing of detailed Grounds of Arrest to the relative, wife/mother in the instance case, has not caused any prejudice to the respondents. More so, due to the fact that the respondents, being armed with their counsel, applied for bail on the very same day before the Court of CJM, Barasat, Kolkata and subsequently, before CJM, Kamrup (M), Guwahati.
13. While citing the case of Ashok Dhankad v. State of NCT of Delhi 2025 0 Supreme (SC) 1196, the learned counsel for the petitioner submits that setting aside an order of granting bail and cancellation of bail are two distinct concepts. The learned counsel for the petitioner submits that an appeal against grant of bail may be entertained by the superior Court under grounds, such as, perversity, illegality, inconsistency with law, relevant factors not being taken into consideration including gravity of the offence and impact of the crime. He submits that the impugned order dated 07.06.2025 is perverse due to the fact that the bail was granted only due to the fact that the Grounds of Arrest did not mention heading as Section 47 of BNSS; similarly, the notice to relative did not contain the heading Section 48 of BNSS. He further submits that the order is bad due to the fact that there was absolute compliance of Section 48 Cr.P.C., as notice to relative too was issued to wife/mother of the respondents.
14. The learned counsel for the petitioner while citing the case of Anna Reddy Sambasiva Reddy v. State of Andhra Pradesh 2009 0 Supreme (SC) 788, submits that non-mentioning of the Sections of BNSS in the Grounds of Arrest and the notice to relative did not prejudice the respondents. He submits that no failure of justice had been caused due to such non-mentioning of the headings as the contents were duly provided in the aforesaid Grounds of Arrest as well as in the notice to a relative. In view of the above, he submits that considering the facts and circumstances of the case, the omission, at best, could be termed as irregular rather than illegal, which is curable and not fatal.
15. The learned counsel for the petitioner submits that misquoting or nonquoting of provision of law is not a ground to dismiss an application or a legal proceeding, if the petition is otherwise maintainable in the eye of law, the same shall be entertained, treating the same, as one filed under the relevant provision. In this connection, the learned counsel relied on the case of Mattancherry SC/ST Co-operative Society Ltd. v. A.P. Thomas [OP (C) No. 160 of 2020, dated 12-1-2022], by the High Court of Kerela, at Ernakulam.
16. In view of the aforesaid submissions, the learned counsel for the petitioner submits that the learned CJM, Kamrup (M), Guwahati, has committed an error apparent on the face of the order dated 07.06.2025, as the Grounds of Arrest and Authorization to Arrest were duly communicated to the accused persons in writing at the time of arrest. He submits that Grounds of Arrest were duly explained to respondents which had been acknowledged by the respondents as could be seen from the Arrest Memos issued to the respondents. Further, the intimation as mandated under Section 48 of BNSS was also served to their relative at the time of Arrest without any delay, thereby complying with the provisions of CGST Act, 2017, as well as BNSS, 2023. Therefore, he submits that the instant petition may be allowed by setting aside the impugned order dated 07.06.2025, passed by the learned CJM, Kamrup (M), Guwahati, in Case No. DGGI/INV/GST/1208/2025.
17. Per contra, the learned counsel for the respondents submits that the learned CJM, Kamrup (M), Guwahati, granted bail to the respondents on two grounds specifically recorded in the order dated 07.06.2025, in addition to other factors not expressly mentioned in the aforesaid order. He submits that the Grounds of Arrest furnished to the respondents did not bear any reference to Section 47 & 48 of BNSS as well as the written Grounds of Arrest were not provided to the relatives of the respondents along with the intimation of arrest. Therefore, he submits that the learned CJM, Kamrup (M), Guwahati, has granted the bail to the respondents not only on the sole ground of non reference to Section 47 & 48 of BNSS, but also on the basis of other grounds, finding the arrests are in violation of provisions of the CGST Act, 2017, as well as the BNSS, 2023.
18. The learned counsel for the respondent submits that non mentioning of Sections 47 & 48 of BNSS, 2023, in the Arrest Memo vitiated the arrest and the same is not a mere technical defect as has been laid down by the learned Apex Court in the case of Radhika Agarwal (supra). He submits that the case of Radhika Agarwal (supra) has exhaustively laid down the scope, power and the procedure of arrest in the context of CGST Act and the Customs Act. He submits that the Hon’ble Apex Court has clearly held that statutory safeguard must be adhered to both in letter and spirit. He submits that in the aforesaid case, the Hon’ble Apex Court has categorically mandated that the Arrest Memo should indicate the relevant sections of the CGST Act as well as other laws attracted to the case. He submits that this requirement is further fortified by CBIC Circular No. CN 02/2022-2023-GST (Investigation) dated 17.08.2022 in paragraph 4.2, which directs that Arrest Memo must reflect the precise provisions of CGST Act of 2017 or other applicable laws, with inapplicable provisions struck of.
19. The learned counsel for the respondents submits that the power of arrest under CGST Act, 2007, being exercisable without warrant, is a drastic and extreme power and hence, such powers must be exercised in strict compliance of statutory safeguards. He further submits that the failure to mention the BNSS provisions in the Arrest Memo cannot be treated as a mere technical defect, which in fact, amounts to gross violation of binding statutory mandates and judicial pronouncements.
20. The learned counsel for the respondents submits that non communication of Grounds of Arrest to the relatives of the respondents is a violation of the mandates of the CGST Act, 2017 as well as the BNSS, 2023, and in the present case, the bail was granted also on the ground that the relatives of the respondents were not served with the written Grounds of Arrest at the time of arrest. In this connection, he submits that the Hon’ble Apex Court in the case of Vihaan Kumar (supra) has categorically held that the requirement of communicating the Grounds of Arrest is not only confined to the detenue, but the same also has to be communicated to the friends, relatives or nominated persons of the respondents as contemplated in Section 48 of BNSS, 2023. He submits that the Hon’ble Apex Court emphasized that for an arrested person, he may not have immediate and effective access to legal remedies and this gap can only be bridged if the Grounds of Arrest are simultaneously made available to the relatives or nominated persons, thereby, safeguarding the detenue’s fundamental right to liberty and life under Articles 21 & 22 of the Constitution. He submits that such failure cannot be dismissed as a mere irregularity as the same goes to the very root of the arrest.
21. The learned counsel for the respondents submits that in the impugned order, the learned CJM, Kamrup (M), Guwahati, considered all the relevant factors while granting the bail and it is neither expected nor necessary to record all the grounds advanced by the learned counsel arguing the bail petition. He submits that a bail order need not contain a detailed or exhaustive discussion of evidence or materials collected during investigation as the detailed discussion may cause prejudice to the arrested detenue. In support of his submissions, the learned counsel for the respondents relied on the case of J ibangshu Paul v. NIA 2011 SCC OnLine Guahati 107.
22. The learned counsel for the respondents submits that Section 132 (5) of CGST Act, 2017, empowers the authorities to arrest a person only in cases where the amount of tax allegedly evaded exceeds the threshold of Rs. 5 crores and unless the detailed computation of the alleged liabilities being duly furnished, it cannot be ascertained whether the threshold is really met or not. He submits that in the instant case, no such computation has been provided under the “reason to believe” and thereby, violated the mandates of Section 132 of the CGST Act, 2017. In this connection, the learned counsel for the respondents relied on the case of Radhika Agarwal (supra). To buttress his same argument, he relied on the cases of Natwar Kumar Jalan v. Union of India (Gauhati)/[WP(C) No. 6821/2024] and Varun Goyal v. State of Assam  (Gauhati)/(Crl.Pet. No. 699/2025), both passed by Hon’ble Gauhati High Court.
23. The learned counsel for the respondents further submits that the Grounds of Arrest mentioned in the Arrest Memo were inadequate as it did not provide sufficient materials for the basis of allegations, except stating that the respondents had availed ineligible ITC in contravention of eligibility of ITC as stipulated in Section 16(2)(c) of the CGST Act.
24. The learned counsel for the respondents submits that the “reasons to believe” must include a computation and/or an explanation, based on factors such as goods seized, from which a conclusion of guilt can be drawn. He submits that details are crucial as they facilitate judicial review of the exercise of the power of arrest. He submits that in the present case, no details whatsoever, had been provided with respect to how the amounts of Rs. 8.27 crores and Rs. 8.26 crores were arrived at by the Investigating Authority. He submits that there was no computation data or documents except a mere statement that the analysis of GST Returns indicated that the respondent no. 1 and respondent no. 2 had availed ineligible ITC of Rs. 8.27 crores and Rs. 8.26 crores respectively.
25. The learned counsel for the respondents further submits that normally, the power of arrest under Section 132 of the CGST Act, should not be exercised without completion of assessment proceeding and it is only in exceptional cases where the Commissioner may authorize arrest when he is able to ascertain the “reasons to believe” based on materials and evidences. He submits that there has to be a degree of certainty to establish that offence is committed and that such offence is non-bailable. He submits that in the instant case, no such material was either provided along with the arrest memo or with the notice to the relatives, thereby, causing violation of the mandate as provided under Section 132 of the CGST Act, 2017.
26. The learned counsel for the respondents submits that there is a clear distinction between “reasons for arrest” and “grounds for arrest”. By citing the case of Prabir Purkayastha (supra), he submits that the “reasons for arrest” are basically of general nature and applied to any respondents, while the “Grounds of Arrest” must be specific to individual and set out the concrete facts justifying his arrest, communicated in writing so that he can contest custodial remand and apply for bail. Therefore, he submits that by not providing the Grounds of Arrest, the Investing Authority has violated the mandates of the Hon’ble Apex Court as laid down in the aforesaid case of Prabir Purkayastha (supra).
27. The learned counsel for the respondents submits that the contention made by the counsel for the petitioner that the respondents have failed to comply with the bail conditions is factually incorrect, as the respondents have duly appeared and participated in the investigation proceeding in response to multiple summons. He submits that though the respondents could not appear on few occasions due to genuine grounds beyond their control, they had furnished letters stating the reasons for such non-appearances. Therefore, he submits that there is no violation of any bail conditions by the respondents in the instant case.
28. The learned counsel submits that a bail granted cannot be cancelled in a criminal revision petition by invoking the extraordinary inherent power of this Court under Section 538 of the BNSS, 2023. He submits that it is a settled position of law that inherent powers of the High Court can be exercised only to prevent abuse of the process of law or to secure ends of justice and cannot be expanded to convert a criminal revision petition into a bail cancellation proceeding. He further submits that a cancellation of bail is a distinct remedy, governed by its own parameters and must be sought through an appropriate application before the competent Court. He submits that in the instance case, the proper course would have been to move an application before the learned CJM, who granted the bail, seeking cancellation on specific grounds by supported materials. He submits that the settled position of law is that the bail once granted should not be cancelled in a mechanical or routine manner. In this connection, he relied on the case of Daulat Ram v. State of Haryana (1995) 1 SCC 349 and Jibanshu Paul (supra).
29. The learned counsel for the respondents submits that the CGST Department has adopted a vindictive and abusive process to keep the respondents incarcerated, which is palpably evident from the fact that the respondents were again arrested at Siliguri, on the very same grounds alleging that transactions between their Guwahati registration and West Bengal registration were fictitious. He submits that after the aforesaid arrest in Siliguri, the Hon’ble Calcutta High Court had granted bail to the respondents, vide it’s order dated 04.09.2022.
30. The learned counsel for the respondents submits that it is an established principle of law that bail so granted, cannot be cancelled in a mechanical manner. He submits that rejection of bail at the initial stage in a non- bailable case and cancellation of bail once granted, are matters to be considered entirely on different principles due to the fact that while the former depends upon the prima facie assessment of the case, the later requires the cogent and overwhelming circumstance to justify interference with the liberty already conferred on the respondents. He submits that cancellation of bail, once granted, must rest on a clear, supervening circumstance showing that it is no longer conducive to a fair trial to allow the respondents to remain on bail.
31. Heard the learned counsels appearing for the respective parties.
32. Both the petitioner as well as the respondents have submitted their written submissions in the instant case and the same are kept on record.
33. At the very outset, this Court would like to examine the contentions of the respondents that the bail cannot be cancelled in a criminal revision petition by invoking the extraordinary inherent jurisdiction of this Court under Section 528 of BNSS, 2023. It is seen that the instant petition that has been filed by the petitioner, is not for cancellation of the bail, rather, it has been filed for setting aside of the impugned order dated 07.06.2025, passed by the learned CJM, Kamrup (M), Guwahati, on the grounds of non-application of judicial mind and misinterpretation of the mandates under CGST Act, 2017 as well as the BNSS, 2023. In this connection, it will be relevant to reproduce herein below, the prayer so made in the instant petition: –
“I. Admit this Criminal Revision Petition and call for the records of the case;
II.to set aside the impugned Order dated 07.06.2025 passed by the Learned Chief Judicial Magistrate, Kamrup (M), Guwahati in Case No. DGGI/INV/GST/1208/2025;
III.set aside the Impugned Order dated 07.06.2025 and in the interim, stay the operation of Impugned Order dated 07.06.2025;
IV.and/or may pass such further order or orders as your Lordships may deem fit and proper.”
34. It is apparent from the aforesaid that the instant petition has been filed not for cancellation of the bail but the petition has been filed for setting aside of the impugned order dated 07.06.2025, passed by the learned CJM, Kamrup (M), Guwahati, whereby, the respondents were allowed to go on bail. There is a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail. In this connection, it may be worthwhile to refer to the case of Ranjit Singh v. State of Madhya Pradesh (2013) 16 SCC 797, wherein the Hon’ble Apex Court, while discussing the difference between the petition for setting aside the order of bail and cancellation of bail, has held as below in Paragraph-19: –
“19. It needs no special emphasis to state that there is distinction between the parameters for grant of bail and cancellation of bail. There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior Court. We have already referred to various paragraphs of the order passed by the High Court. We have already held that the learned Trial Judge has misconstrued the order passed by the High Court. However, we may hasten to add that t he learned Single Judge has taken note of certain supervening circumstances to cancel the bail, but, we are of the opinion that in obtaining factual matrix, the said exercise was not necessary as the grant of bail was absolutely illegal and unjustified as the Court below had enlarged the accused on bail on the strength of order passed in Ranjit Singh v. The State of M.P., revealing oblivious of the parameters of the grant of bail under Section 439 CrPC. It is well settled in law that grant of bail though involved exercise of discretionary power of the court yet, the said exercise has to be made in a judicial manner and not in a matter of course.”
35. As held by the Hon’ble Apex Court in the aforesaid case, it is important to distinguish between a petition for cancellation of bail and the petition for setting aside a bail order. Though both involved the Court exercising it’s discretion within the four corners of law and may result in the same outcome, they differ significantly. While the former focuses on supervening circumstances, the later needs the Court to focus on the grounds for granting bail and their legal sustainability. Therefore, if there is apparent illegality in the bail order, the same can be set aside, holding the Arrest as legal in terms of provisions of law, whereas, if the bail conditions are misused or violated, the order of bail can be cancelled.
36. In the case of Puran v. Rambilas (2001) 6 SCC 338, in the same context as aforesaid, the Hon’ble Apex Court has held as below: –
“11. Further, it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts, requiring such cancellation. This position is made clear by this Court in the case of Gurcharan Singh v. The State (Delhi Admn.). In that case, the Court observed as under: –

“If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances has arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well, approach the High Court being the superior Court, under Section 439(2) to commit the accused to custody, when, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except, those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court.

13. Our view is supported by the principles laid down in the case of Gurcharan Singh v. The State (Delhi Admn.). In this case, it has been held by this Court that under Section 439(2), the approach should be whether the order granting bail, vitiated by any serious infirmity for which it was right and proper for the High Court, for the interest of justice, to interfere.”
37. In view of the aforesaid legal propositions laid down by the Hon’ble Apex Court, it is clear that the petition for setting aside a bail order is different from a petition for cancellation of bail. In the instant case, from the prayer as well as the submissions made by the learned counsel for the petitioner, it is undoubtedly clear that the instant petition, under Section 438 read with Section 528 and Section 442 of BNSS, 2023, has been filed by the petitioner for setting aside of the impugned order dated 07.06.2025 and not for cancellation of bail. Therefore, this Court has jurisdiction to hear the petition for setting aside of the impugned order dated 07.06.2025, under a petition filed under Section 438 read with Section 528 and Section 442 of BNSS, 2023.
38. Now, let this Court examine whether the impugned order dated 07.06.2025, passed by the learned CJM, Kamrup (M), Guwahati, is correct or the same is bereft of the settled law.
39. As mentioned earlier, the respondents were arrested on 05.06.2025, in connection with Case No. DGGI /INV/GST/1208/2025. Thereafter, on being produced before the CJM, Kamrup (M), Guwahati, on 07.06.2025, the respondents were granted bail by the learned CJM, Kamrup (M), Guwahati. On perusal of the impugned order dated 07.06.2025, it is seen that primarily the bail was granted due to non-mentioning of the headings under Sections 47 & 48 of the BNSS, 2023, as well as for the ground that notices to the relatives of the accused person have been given, however, the notices did not contain any Grounds of Arrest. At this stage, it may be relevant to reproduce herein below, the relevant part of the aforesaid order dated 07.06.2025: –
“Upon perusal of case record, it is seen that I.O. has stated the Grounds of Arrest in a paper but not mention heading as section 47 BNSS. Moreover, one notice to the relative of the accused persons have been submitted along with the case record however the said notice did not contain the heading section 48 of BNSS and in the said notice Grounds of Arrest are not mentioned.
Considering the fact that the Grounds of Arrest in writing was not provided to the relative of the accused persons at the time of their arrest, it appears that the constitutional mandate of the Hon’ble Supreme Court of India passed in the cases of (1) Prabir Purkayashta v. State (NCT of Delhi) Supra and (2) Vihaan Kumar Vs State of Haryana and Another (2025 SCC Online SC 269) not been followed, this Court is of the view that it is a fit case for granting bail to the accused persons Ankit Choudhary and Shashi Kumar Choudhary in the instant case.
Accordingly, accused persons Ankit Choudhary and Shashi Kumar Choudhary are allowed to go on bail of Rs. 50,000/- (Fifty Thousand) with two suitable sureties each (one surety should be Government Employee) of like amount i.d. to judicial custody and subject to the following bail conditions:
1.The accused persons Ankit Choudhary and Shashi Kumar Choudhary shall appear before the I/O,
2.The accused Ankit Choudhary and Shashi Kumar Choudhary shall not commit any offence similar to the alleged offence;
3.The accused Ankit Choudhary and Shashi Kumar Choudhary shall in no way hamper or tamper with the investigation of the case; and
4.The accused Ankit Choudhary and Shashi Kumar Choudhary shall cooperate with the investigation and appear before the I.O. as directed.
In the event of failure to comply with any of these conditions, the investigation agencies are at liberty to proceed against the accused persons as per law.”
40. From the above, it is noticed that the learned CJM, held that the notice to the relatives under Section 48 of the BNSS did not contain the Grounds of Arrest of the respondents. The notices to the relatives are brought on record in the instant case by way of annexures to the petition. A perusal of the notice transpires that though an intimation of arrest of the accused persons were given but, no detailed Grounds of Arrest have been mentioned in the notice. Two notices were issued to one Smti Vandana Choudhary, the wife of respondent no. 1 who is also the mother of respondent no. 2. The contents of the notice with respect to respondent no. 1 are reproduced herein below for ready reference: –
“I have been told by Shri Shashi Kumar Chauhary that you, Smti Vandana Choudhary is his wife. Therefore, this is to inform that Shri Shashi Kumar Choudhary, who is the proprietor of M/s S.K. Enterprises (GSTIN 18ACNPC6284D1ZJ) has been arrested under Section 69 of CGST Act, 2017.
He was arrested at 11:PM on 05.06.2025 in connection evasion of GST by way of availment of ineligible ITC in violation of provisions of the Central Goods and Services Tax Act, 2017 (CGST Act, 2017) and Rules made there under. An offence has been registered by this office. He will be produced before the Hon’ble Magistrate, Barasat, Kolkata, tomorrow i.e., 06.06.2025.”
A similar notice was also issued to the aforesaid Smti Vandana Choudhary in respect of arrest of the respondent no. 2. Both the notices were duly received by the aforesaid Vandana Choudhary on 05.06.2025 at 11:50 PM, immediately after the arrests of the respondents at 11:00 PM.
41. While arresting the respondents, the respondents were given the copy of the Arrest Memo along with annexures namely, (i) Authorization of Arrest, which includes “reasons to believe” and (ii) the Grounds of Arrest. From the perusal of the Arrest Memos, it is seen that the respondents were explained about the grounds of their arrest. The Arrest Memos also contained the respective signatures of the respondents in acknowledgment of receipt of the Memos. This Court has gone through the Authorization to Arrest given to the respondents. As for the one given to respondent no. 1, it is seen that there is mention of an investigation which revealed that the respondent no. 1 has generated ITC of Rs. 8.27 crores, whereas the respondent no. 2 generated Rs. 8.26 crores, however, the inward supply of goods have not suffered the GST, which is in violation of the provisions of Section 16(2) (c) of the CGST Act, resulting in evasion of GST. It was mentioned that such evasion is an offence under Section 132 (1) (c) of the CGST Act and a punishable, cognizable and non-bailable offence under Section 132 (5) of the CGST Act, 2017. It was also specifically mentioned that the respondent no. 1 was found to be involved in availment of ineligible ITC of Rs. 8.27 crores in contravention of the condition as stipulated in Section 16 (2) of the CGST Act, 2017 which is an offence specified in clause (c) of sub-section (1) of Section 132 of CGST Act and punishable under Clause (i) of sub-section (1) of the said Section. Therefore, he is liable for arrest under Section 69 of the CGST Act, 2017, for the offence committed as mentioned. The Authorization to Arrest further contained the reasons of arrest of respondent no. 1. A similar Authorization to Arrest was also given to the respondent no. 2 with identical contents.
42. From the above Authorization to Arrest, it is seen that the Grounds of Arrests have been mentioned in reasonable details in compliance to Circular: 2/2022-23 (GST-Investigation) (Instruction) dated 17-Aug-2022, issued by the Central Board of Indirect Taxes & Customs, New Delhi, Ministry of Finance (Department of Revenue), Government of India, which provides for guidelines of Arrest and Bailoffences punishable under CGST Act, 2017.
43. In this connection, at this stage, the relevant parts of the aforesaid Circular dated 17-Aug-2022, may be reproduced herein below: –
“F. No. GST/INV/Instructions/2021-22 Dated:17-08-2022
Government of India
Ministry of Finance (Department of Revenue)
Central Board of Indirect Taxes & Customs, New Delhi
Subject: Guidelines for Arrest and Bail in relation to offences punishable under the CGST Act, 2017-Regarding Hon’ble Supreme Court of India in its judgment dated 18th August, 2021 in Criminal Appeal No. 838 of 2021, arising out of SLP (Crl.) No. 5442/2021 [2022 (64) G.S.T.L. 34 (S.C.)], has observed as follows:
“We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or Accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause Incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout co-operated with the Investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”
2. Board has examined the above-mentioned judgment and has felt the need to issue guidelines with respect to arrest under CGST Act, 2017. Even, under legacy laws i.e. Central Excise Act, 1944 (1 of 1944) and Chapter V of the Finance Act, 1994 (32 of 1994), the instructions regarding exercise of power to arrest had been issued.
3. Conditions precedent to arrest:
3.1. Sub-section (1) of Section 132 of CGST Act, 2017 deals with the punishment for offences specified therein. Sub-section (1) of Section 69 gives the power to the Commissioner to arrest a person where he has reason to believe that the alleged offender 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 clause (ii) of sub-section (1), or sub-section (2) of the Section 132 of CGST Act, 2017. Therefore, before placing a person under arrest, the legal requirements must be fulfilled. The reasons to believe to arrive at a decision to place an alleged offender under arrest must be unambiguous and amply clear. The reasons to believe must be based on credible material.
3.2. Since arrest impinges on the personal liberty of an individual, the power to arrest must be exercised carefully. The arrest should not be made in routine and mechanical manner. Even if all the legal conditions precedent to arrest mentioned in Section 132 of the CGST Act, 2017 are fulfilled, that will not, ipso facto, mean that an arrest must be made. Once the legal ingredients of the offence are made out, the Commissioner or the competent authority must then determine if the answer to any or some of the following questions is in the affirmative:
3.2.1 Whether the person was concerned in the non-bailable offence or credible information has been received, or a reasonable suspicion exists, of his having been so concerned?
3.2.2 Whether arrest is necessary to ensure proper Investigation of the offence?
3.2.3 Whether the person, if not restricted, is likely to tamper the course of further investigation or is likely to tamper with evidence or intimidate or influence witnesses?
3.2.4 Whether person is mastermind or key operator effecting proxy/benami transaction in the name of dummy GSTIN or non-existent persons, etc. for passing fraudulent input tax credit etc.?
3.2.5 As unless such person is arrested, his presence before investigating officer cannot be ensured.
3.3. Approval to arrest should be granted only where the intent to evade tax or commit acts leading to availment or utilization of wrongful Input Tax Credit or fraudulent refund of tax or failure to pay amount collected as tax as specified in sub-section (1) of Section 132 of the CGST Act, 2017, is evident and element of mens rea/guilty mind is palpable.
3.4. Thus, the relevant factors before deciding to arrest a person, apart from fulfillment of the legal requirements, must be that the need to ensure proper investigation and prevent the possibility of tampering with evidence or intimidating or influencing witnesses exists.
3.5. Arrest should, however, not be resorted to in cases of technical nature i.e. where the demand of tax is based on a difference of opinion regarding interpretation of Law. The prevalent practice of assessment could also be one of the determining factors while ascribing intention to evade tax to the alleged offender. Other factors influencing the decision to arrest could be. If the alleged offender is co-operating in the investigation, viz. compliance to summons, furnishing of documents called for, not giving evasive replies, voluntary payment of tax etc.
Procedure for arrest
4.1. Pr. Commissioner/Commissioner shall record on file that after considering the nature of offence, the role of person involved and evidence available, he has reason to believe that the person has committed an offence as mentioned in Section 132 and may authorize an officer of central tax to arrest the concerned person(s). The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) read with section 69(3) of CGST Act relating to arrest and the procedure thereof, must be adhered to. It is, therefore, advised that the Pr. Commissioner/Commissioner should ensure that all officers are fully familiar with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
4.2. The arrest memo must be in compliance with the directions of Hon’ble Supreme Court in the case of D.K. Basu v. State of West Bengal reported in 1997 (1) SCC 416 (see paragraph 35). Format of arrest memo has been prescribed under Board’s Circular No. 128/47/2019-GST, dated 23rd December, 2019 [2020 (32) G.S.T.L. C3]. The arrest memo should indicate relevant section(s) of the CGST Act, 2017 or other laws attracted to the case and to the arrested person and inapplicable provisions should be struck off. In addition,
4.2.1 The grounds of arrest must be explained to the arrested person arid this fact must be noted in the arrest memo;
4.2.2 A nominated or authorized person (as per the details provided by arrested person) of the arrested person should be informed immediately and this fact shall be mentioned in the arrest memo;
4.2.3 The date and time of arrest shall be mentioned in the arrest memo and the arrest memo should be given to the person arrested under proper acknowledgement.
4.3. A separate arrest memo has to be made and provided to each individual/arrested person. This should particularly be kept in mind in the event when there are several arrests in a single case.
4.4. Attention is also invited to Board’s Circular No. 122/41/2019-GST, dated 5th November, 2010 [2019 (30) G.S.T.L C17] which makes generation and quoting of Document Identification Number (DIN) mandatory on communication issued by officers of CBIC to taxpayers and other concerned persons for the purpose of investigation. Any lapse in this regard will be viewed seriously,
4.5. Further there are certain modalities which should be complied with at the time of arrest and pursuant to an arrest, which include the following:
4.5.1 A woman should be arrested only by a woman officer in accordance with section 46 of Code of Criminal Procedure, 1973.
4.5.2 Medical examination of an arrested person should be conducted by a medical officer in the service of Central or State Government and in case the medical officer is not available, by a registered medical practitioner, soon after the arrest is made. If an arrested person is a female, then such an examination shall be made only by or under supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.
4.5.3 It shall be the duty of the person having the custody of an arrested person to take reasonable care of the health and safety of the arrested person
4.5.4 Arrest should be made with minimal use of force and publicity, and without violence. The person arrested should be subjected to reasonable restraint to prevent escape.”
44. It is seen that the aforesaid Circular provides for guidelines for conditions precedent to arrest and procedure for arrest. The conditions precedent to arrest, emphasize that the Commissioner while issuing the Authorization to Arrest has to provide the “reasons to believe” that the alleged offender has committed any offence specified in Clause (a) or Clause (b) or Clause (c) or Clause (d) of subsection (1) of Section 132, which is punishable under Clause (i) or (ii) of subsection (1), or sub-section (2) of Section 132 of CGST Act, 2017.
45. In the instant case, as can be seen from the Authorization to Arrest that the authorized officer concerned to issue the Authorization to Arrest, has come to a prima facie finding that the respondent no. 1 is found to be involved in availment of ineligible ITC of Rs. 8.27 crores in contravention of the eligibility, as stipulated in Section 16 (2) of the CGST Act, 2017. A similar finding is also available in the Authorization to Arrest in respect of respondent no. 2 for Rs. 8.26 crores. It may be relevant herein to reproduce the relevant paragraphs from the Authorization to Arrest to the respondent no. 1: –
“Investigation has revealed that Sh. Shashi Kumar Chaudhary, prop. of M/s SK. Enterprise, Assam has self generated ITC of Rs. 8.27 Cr. The inward supply of goods has not suffered the GST. This is in violation of provisions of Sec 16(2)(c) of the COST Act. This has resulted in evasion of GST. This is an offence under Sec 132(1)(c) of the CGST Act. This offence is punishable under see 132(1)(i) of the CGST Act and it is a cognizable and non-bailable offence under sec 132 (5) of the CGST Act.
Shri Shashi Kumar Choudhary, Proprietor of M/s SK Enterprises (GSTIN 18ACNPC6284D1ZJ) aged about 45 years and son of Shri Jagdish Prasad Choudhary, Resident of Block-4, Flat No. 5-J, Space Town Housing Complex, VIP Road, Rajarhat, Gopalpur (M), North 24 Parganas, West Bengal-700052 (Aadhaar No. 7182-3247-8156), is found to be involved in availment of ineligible ITC of Rs. 8.27 crores in contravention of the conditions of eligibility as stipulated in Section 16(2) of the CGST Act 2017, which is an offence specified in clause (c) of sub-section (1) of Section 132 of Central Goods & Services Tax, 2017 and punishable under clause (i) of sub-Section (1) of the said Section. Therefore, he is liable for arrest under Section 69 of the CGST Act, 2017 for the offence committed as above.”
A similar Authorization to Arrest was also issued to respondent no. 2 for availment of ITC of Rs. 8.26 crores.
46. It is also seen from the Grounds of Arrest issued to the respondents that statements of the respondents were recorded on 05.06.2025, wherein the respondents admitted to have availed ineligible ITC to the tune of Rs. 8.27 crores (respondent no. 1) and Rs. 8.26 crores (respondent no. 2).
47. At this point of time, it may be relevant to consider the observations of the Hon’ble Apex Court in the case of Radhika Agarwal (supra), which are reproduced herein below: –
“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.
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.
58. Our attention was drawn to the judgment of the High Court of Delhi in Makemytrip (India) Private Limited and Another v. Union of India and Others, 2016 SCC Online Del 4951 which is a decision interpreting the power of arrest under the Finance Act, 1994. These provisions are related to service tax. Excise duty, service tax, and other taxes are subsumed under the GST regime. Accordingly, we are in agreement with the findings recorded in this decision to the extent that the power of arrest should be used with great circumspection and not casually. Further, as in the case of service tax, the power of arrest is not to be used on mere suspicion or doubt, or for even investigation, when the conditions of sub-section (5) to Section 132 of the GST Acts are not satisfied.
59. However, relying upon the judgment in the case of Makemytrip (supra), it has been submitted on behalf of the petitioners, that the power under Sub-Section (5) to Section 132 cannot be exercised unless the procedure under Section 73 of the GST Act is completed and an assessment order is passed quantifying the tax evaded or erroneously refunded or input tax credit wrongly availed. According to us, this contention should not be accepted as a general or broad proposition. We would accept that normally the assessment proceedings would quantify the amount of tax evaded, etc. and go on to show whether there is any violation in terms of clauses (a) to (d) to Sub-Section (1) of Section 132 of the GST Acts and that clause (i) to Sub-Section (1) is attracted. But there could be cases where even without a formal order of assessment, the department/Revenue is certain that it is a case of offence under clauses (a) to (d) to Sub-Section (1) of Section 132 and the amount of tax evaded, etc. falls within clause (1) of Sub-Section (1) to Section 132 of the GST Acts with sufficient degree of certainty. In such cases, the Commissioner may authorize arrest when he is able to ascertain and record reasons to believe. As indicated above, the reasons to believe must be explicit and refer to the material and evidence underlying such opinion. There has to be a degree of certainty to establish that the offence is committed and that such offence is non-bailable. The principle of benefit of doubt would equally be applicable and should not be ignored either by the Commissioner or by the Magistrate when the accused is produced before the Magistrate.”
48. In the aforesaid judgment while concurring with the majority view, Hon’ble Bela M. Trivedi, J, has observed that Special Acts are enacted to achieve specific purposes and objectives. Therefore, the power of judicial review in cases of arrest under such Special Acts should be exercised cautiously and in rare circumstances to balance individual liberty with the interest of justice and the society at large. The Hon’ble Judge further observed that any liberal approach in construing the stringent provisions of the Special Acts may frustrate the very purpose and objective of the Acts. It was observed that minor procedural lapse on the part of authorized official may not be seen by magnifying glass in exercise of power under judicial review, which may ultimately end up granting undue advantage or benefit to the person accused of very serious offences under the Special Acts.
49. This Court has carefully gone through the guidelines issued vide the aforesaid F. No. GST/INV/Instructions/2021-22, dated 17-Aug-2022, as well as the principles laid down by the Hon’ble Apex Court in the case of Radhika Agarwal (supra). It is discernible from the aforesaid Authorization to Arrest and the Grounds of Arrest that the Investigating Agency of DGGI, Guwahati Zonal Unit has complied with the mandates of the CGST Act, 2017, reading with the aforesaid guidelines dated 17-Aug-2022, while recording the “reasons to believe”. It is seen from the Authorization to Arrest that specific materials in terms of availment of ineligible ITC of Rs. 8.27 crores (respondent no. 1) and Rs. 8.26 crores (respondent no. 2), were prima facie found against the respondents. It is also seen from the Grounds of Arrest that the statements of the respondents were also recorded to the effect that admissions on the part of the respondents for availing ineligible ITC for the aforesaid amounts. In view of the aforesaid materials found in the Authorizations to Arrest and the Grounds of Arrest of both the respondents, this Court is of the considered opinion that while arresting the respondents, the arresting authority has complied with the provisions of Section 132 of CGST Act, 2017, the guidelines dated 17-Aug-2022 and also the mandates of the Hon’ble Apex Court in the case of Radhika Agarwal (supra). This Court is also of the opinion that the CGST Act, 2017, being a Special Act and the provisions of arrest are specifically provided under the Act, for violation of the provisions, they have to be substantially complied with without any failure on the part of the arresting authority. However, minor procedural lapses should not be a hindrance in compliance of the provisions of the Act. This Court is in respectful agreement with the observations made at paragraph-12 (Justice Bela M. Trivedi) of the case of Radhika Agarwal (supra) to the extent that the power of judicial review, in cases of arrest, under such Special Acts should be exercised very cautiously and in rare circumstances to balance individual liberty with the interest of justice and the society at large. Any liberal approach in construing the stringent provisions of the Special Acts may frustrate the very purpose and objective of the Acts.
50. As far as the requirements under Section 48 of BNSS, which mandates obligation of the arresting authority, making the arrest to inform about arrest, etc., to relative or friend, the Hon’ble Apex Court in the case of Vihaan Kumar (supra) has held that Grounds of Arrest are required to be communicated to the friends, relatives or such other persons of the accused as may be disclosed or nominated by the arrested person. In this context, paragraph nos. 41 & 42 are reproduced herein below: –
“41. The issue on the requirement of communication of grounds of arrest to the person arrested, as mandated under Article 22(1) of the Constitution of India, which has also been incorporated in the Prevention of Money Laundering Act, 2002 under Section 19 thereof has been succinctly reiterated in this judgment. The constitutional mandate of informing the grounds of arrest to the person arrested in writing has been explained in Pankaj Bansal so as to be meaningful to serve the intended purpose which has been reiterated in Prabir Purkayasthas. The said constitutional mandate has been incorporated in the statute under Section 50 CrPC (Section 47 of the BNSS). It may also be noted that the aforesaid provision of requirement for communicating the grounds of arrest, to be purposeful, is also required to be communicated to the friends, relatives or such other persons of the accused as may be disclosed or nominated by the arrested person for the purpose of giving such information as provided under Section 50-A CrPC. As may be noted, this is in the addition of the requirement as provided under Section 50(1) CrPC.
42. The purpose of inserting Section 50-A CrPC, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person, is to ensure that they would be able to take immediate and prompt actions to secure the release of the arrested person as permissible under the law. The arrested person, because of his detention, may not have immediate and easy access to the legal process for securing his release, which would otherwise be available to the friends, relatives and such nominated persons by way of engaging lawyers, briefing them to secure release of the b detained person on bail at the earliest. Therefore, the purpose of communicating the grounds of arrest to the detenue, and in addition to his relatives as mentioned above is not merely a formality but to enable the detained person to know the reasons for his arrest but also to provide the necessary opportunity to him through his relatives, friends or nominated persons to secure his release at the earliest possible opportunity for actualising the fundamental right to liberty and life as guaranteed under Article 21 of the Constitution. Hence, the requirement of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal.”
51. A submission has been made by the learned counsel for the petitioner that in view of the judicial pronouncement rendered in the case of Sri Darshan (supra) that mere absence of written grounds does not ipso facto render the arrest illegal, unless it results in demonstrable prejudice or denial of a fair opportunity to defend. He has submitted that all the necessary information regarding the arrest of the respondents were available with the respondents and accordingly, the respondents had immediately applied for bails before the CJM, Barasat, West Bengal, on 06.05.2025, wherein the bail applications were rejected and transit remands were allowed by the learned CJM, Barasat, West Bengal. He has submitted that, thereafter, on 07.06.2025, when the respondents were produced before the CJM, Kamrup (M), the respondents submitted their bail application. In view of the aforesaid, the learned counsel for the petitioner has submitted that no prejudice has been caused to the respondents in seeking their bails. Therefore, he has submitted that the ratio laid down in the case of Sri Darshan (supra) is squarely applicable to the instant case, as all the required information that are to be provided under Sections 47 & 48 of the BNSS, 2023, are duly complied with. In view of the above, he has submitted that the impugned order dated 07.06.2025 is not sustainable being against the ratio laid by the Hon’ble Apex Court in the case of Sri Darshan (supra).
52. The Hon’ble Apex Court, while pronouncing the judgment in the case of Sri Darshan (supra) has considered the ratio laid down by the Hon’ble Apex Court in the case of Vihaan Kumar (supra). Some of the findings of the Hon’ble Apex Court in the case of Sri Darshan (supra) are reproduced herein below: –
“20.1.1. ***************************************
20.1.2. Article 22(1) of the Constitution mandates that “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.” Similarly, Section 50 (1) Cr.P.C. requires that “every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
20.1.3. The constitutional and statutory framework thus mandates that the arrested person must be informed of the grounds of arrest – but neither provision prescribes a specific form or insists upon written communication in every case. Judicial precedents have clarified that substantial compliance with these requirements is sufficient, unless demonstrable prejudice is shown.
20.1.4. In Vihaan Kumar v. State of Haryana, 2025 SCC Online SC 456 it was reiterated that Article 22(1) is satisfied if the accused is made aware of the arrest grounds in substance, even if not conveyed in writing. Similarly, in Kasireddy Upender Reddy v. State of Andhra Pradesh, 2025 INSC 768 it was observed that when arrest is made pursuant a warrant, reading out the warrant amounts to sufficient compliance. Both these post-Pankaj Bansal decisions clarify that written, individualised grounds are not an inflexible requirement in all circumstances.
20.1.5. While Section 50 Cr.P.C. is mandatory, the consistent judicial approach has been to adopt a prejudice-oriented test
20.1.7. In the present case, the arrest memos and remand records clearly reflect that the respondents were aware of the reasons for their arrest. They were legally represented from the outset and applied for bail shortly after arrest, evidencing anwhen examining alleged procedural lapses. The mere absence of written grounds does not ipso facto render the arrest illegal, unless it results in demonstrable prejudice or denial of a fair opportunity to defend.
20.1.6. ******************************************
immediate and informed understanding of the accusations. No material has been placed on record to establish that any prejudice was caused due to the alleged procedural lapse. In the absence of demonstrable prejudice, such as irregularity is, at best, a curable defect and cannot, by itself, warrant release on bail. As reiterated above, the High Court treated it as a determinative factor while overlooking the gravity of the charge under Section 302 IPC and the existence of a prima facie case. Its reliance on Pankaj Bansal and Prabir Purkayastha is misplaced, as those decisions turned on materially different facts and statutory contexts. The approach adopted here is inconsistent with the settled principle that procedural lapses in furnishing grounds of arrest, absent prejudice, do not ipso facto render custody illegal or entitle the accused to bail.”
53. From the aforesaid ratios, as has been laid down in the cases of Vihaan Kumar (supra) and Sri Darshan (supra), it is seen that both the cases have laid down the principles to be complied with while arresting a person without committing any violation of Article 21 & 22 (1) of the Constitution of India. In the considered opinion of this Court, that both the cases complement each other rather than having any conflicts between them. While Vihaan Kumar (supra) provides that the requirement of communicating the Grounds of Arrest is not confined to the arrested person alone, at the same time, to be purposeful, such communication must also extent to the friends, relatives or nominated persons of the respondent, as contemplated under Section 48 of the BNSS, 2023, Sri Darshan (supra) provides for a prejudice-oriented test while examining the alleged procedural lapses. It provided that mere absence of written grounds of arrest does not ipso facto renders the arrest illegal unless it results in demonstrable prejudice or denial of a fair opportunity to defend. This needs to be added that the aforesaid was held by the Hon’ble Apex Court in the context of compliance under Section 50 Cr.P.C. (Section 47 BNSS).
54. A similar view has also been expressed by a Co-ordinate Bench of this Court in Anar Ali v. State of Assam [Case No. : Bail Appln./1869/2025, dated 19-9-2025].
55. Though this Court did not find any conflict between the aforesaid cases of Vihaan Kumar (supra) and Sri Darshan (supra), this Court thinks it is relevant to consider the proposition laid down by the Hon’ble Apex Court in the case of A.P. Electrical Equipment Corporation v. Tahsildar 2025 SCC OnLine SC 447. The relevant paragraph from the aforesaid case is reproduced herein below: –
“35. If two decisions of this Court appear inconsistent with each other, the High Courts are not to follow one and overlook the other, but should try to reconcile and respect them both and the only way to do so is to adopt the wise suggestion of Lord Halsbury given in Quinn v. Leathern, [1901] A.C. 495 and reiterated by the Privy Council in Punjab Cooperative Bank Ltd. v. Commr. of Income Tax, Lahore AIR 1940 PC 230:

“. every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions, which may be found there, are not intended to be expositions of the whole law, but governed or qualified by the particular facts of the case in which such expressions are to be found”, and follow that decision whose facts appear more in accord with those of the case at hand.”

56. In view of the aforesaid proposition laid down by the Hon’ble Apex Court, this Court is of the considered opinion that in the instant case in hand, the approach of reconcile is the best suited and therefore, while respectfully agreeing to the proposition laid down in the case of Vihaan Kumar (supra) as regards the compliance under Section 48 of BNSS, 2023, this Court is of the considered opinion that a prejudice-oriented approach/test in the instant case shall be more appropriate due to the peculiar facts involved in the instant case.
57. As far as the factual matrix in the instant case is concerned, as discussed above, it is seen that the respondents were arrested at 11:00 PM on 05.06.2025 and they have been instantly given the Arrest Memos along with the annexures, (i) Authorization to Arrest, which includes “reasons to believe”, (ii) Grounds of Arrest. The receipt of the aforesaid Arrest Memos along with the annexures were acknowledged by the respondents by putting their signatures in the Arrest Memos. The respondents have also acknowledged that they have been explained about the grounds of their arrests. It is also seen that intimations (Notice to Relatives) of the arrests of the respondents were immediately given to Smti Vandana Choudhary at 11:00 PM on 05.06.2025, who happens to be the wife the respondent no. 1 and the mother of the respondent no. 2. The intimations have been duly acknowledged by her by putting her signature in the respective intimations. The contents of the intimations have already been reproduced in a preceding paragraph.
58. Therefore, from the above factual matrix, it is seen that respondents as well as their family members were well aware of the Grounds of Arrest immediately on their arrests. Further, as discussed in the preceding paragraphs, the respondents had applied for bail immediately on 06.05.2025 before the learned Court of CJM, Barasat, West Bengal and their bails were rejected by the CJM Barasat, however, they had been sent on transit remand to Guwahati for production before the CJM, Kamrup (M), Guwahati. It is seen that in both the Courts namely, the CJM, Barasat and the CJM, Kamrup (M), Guwahati, the respondents were represented by counsels during their bail hearings. Therefore, it is apparent that they had no occasion for being prejudiced by non-providing of “the Grounds of Arrest” to the relatives along with the intimation under Section 48 of BNSS, 2023.
59. Section 48 of the BNSS, 2023, makes it mandatory for every police officer or any other persons making any arrest under the BNSS to forthwith give information regarding such arrest and place where the arrested person is being held, to any of his relatives, friends or any such other person as may be disclosed or nominated by the arrested person for the purpose of giving such information. It is settled law that the provisions under Section 48 of BNSS is also applicable to the arrests made under the CGST Act, 2017. In the instant case, an intimation with the required information had been given to the relative (wife/mother) of the respondents.
60. From the above discussion on the legal propositions and the facts involved in the instant case, it is discernible that the arresting authority has complied with all the mandates provided by the CGST Act, 2017 and the BNSS, 2023. It is also apparent that the arresting authority has cautiously complied with the guidelines dated 17-Aug-2022, issued by the Central Board of Indirect Taxes & Customs, New Delhi.
61. In view of the aforesaid findings of this Court, this Court is of the opinion that the arrest of the respondents on 05.06.2025 cannot be termed as illegal or in violation of the mandates of the CGST Act, 2017 and the BNSS, 2023. Consequently, this Court is of the considered opinion that the learned CJM, Kamrup (M), Guwahati, has committed an error while interpreting the mandates of Section 47 & 48 of the BNSS, 2023, while allowing the respondents to go on bail.
62. This Court has not gone into the merits-demerits of the contentions raised by the counsels for the parties, regarding post bail conducts of the respondents as the same is not necessary in the instant petition due to the fact that the instant petition has been filed for setting aside of the impugned order rather than cancellation of the bail.
63. Having found the impugned order dated 07.06.2025 unsustainable under the law, the same is set aside and quashed. Accordingly, the bail bonds of the respondents stand cancelled.
64. This Court makes it clear that the impugned order dated 07.06.2025 is set aside, as there was no violation of Sections 47 & 48 of the BNSS, 2023. However, the respondents shall be at liberty to seek for bail in appropriate forum, if so advised on grounds they may deem fit.
65. In view of the aforesaid, this instant petition is disposed of as allowed.
Category: GST

About CA Satbir Singh

Chartered Accountant having 12+ years of Experience in Taxation , Finance and GST related matters and can be reached at Email : Taxheal@gmail.com