Validity of Arrest and Procedural Safeguards under BNSS 2023

1. The Core Dispute: Technical Omissions vs. Substantive Awareness

The DGGI arrested two respondents for allegedly availing fraudulent Input Tax Credit (ITC) totaling approximately ₹16.53 crore (roughly ₹8.26 crore each). The Chief Judicial Magistrate (CJM) initially granted bail based on two procedural flaws:

The “Heading” Issue: The arrest/bail documents did not explicitly mention the new headings under Sections 47 and 48 of the BNSS, 2023 (which replaced Sections 50 and 50A of the CrPC).
The “Relative Notice” Issue: While relatives were informed of the arrest, the specific “Grounds of Arrest” were not detailed in the notice sent to them.

2. Legal Analysis: Grounds of Arrest under Sections 47 & 48 (BNSS)

The High Court and subsequently the Supreme Court (or High Court in appellate capacity) analyzed whether these omissions prejudiced the accused’s right to liberty.

I. “Grounds of Arrest” vs. “Intimation to Relatives”

The court clarified the distinct duties under the BNSS:

Section 47 (BNSS): Mandatory duty to inform the arrested person of the specific grounds for their arrest and their right to bail.
Section 48 (BNSS): Obligation to inform a relative or friend about the fact of the arrest and the place of detention.

II. Factual Compliance

The Court found that although the notice to relatives was brief, the Arrest Memos provided to the respondents themselves contained detailed annexures outlining the fraud allegations. The respondents had signed these memos, acknowledging that the grounds were explained to them.

Ruling: Since the accused were represented by counsel and were fully aware of the allegations, the lack of detailed grounds in the relative’s notice did not cause “legal prejudice.”

3. Final Ruling: Balanced Enforcement

The Court took a nuanced approach, distinguishing between the roles of the two respondents (Father and Son):

For the Son: Considering his personal circumstances and the nature of the allegations, the High Court’s reversal was set aside, and the CJM’s original bail order was restored.
For the Father: Given the gravity of the ₹8.27 crore fraud, the Court allowed limited custodial interrogation for specified consecutive days. He was directed to be released only after this period, subject to strict conditions imposed by the Trial Court.

Key Takeaways for Taxpayers and Practitioners

Transition to BNSS: Ensure all legal filings and arrest memos now reflect the correct BNSS sections (2023) instead of CrPC (1973).
Grounds Must Be Clear: While technical errors in notice headings may be condoned if the “substance” is met, the Department must ensure the Arrest Memo itself is exhaustive and signed by the arrestee.
Bail is Not Automatic: In GST fraud exceeding ₹5 crore (cognizable/non-bailable), the courts will weigh the “enormity of the allegations” against procedural lapses. Purely technical errors may not be enough to secure bail if the evidence of fraud is substantial.

SUPREME COURT OF INDIA

Shashi Kumar Choudhary

Union of India^*

M.M. SUNDRESH and Nongmeikapam Kotiswar Singh, JJ.

CRIMINAL APPEAL NO. 279 OF 2026^†

JANUARY 15, 2026

Vinay Saraf, Mahesh Agarwal, Ankur Saigal, Ms. Stuti Gujral, Ms. Vidushi Sabharwal, Vipin Kumar, Abhinabh Garg, Ms. Sukriti Bhatnagar, Arjun V. Harihar, Advs. and E.C. Agrawala, AOR for the Petitioner. S.V. Raju, A.S.G., Gurmeet Singh Makker, AOR, Zoheb Hussian, Hitarth Raja and Annam Venkatesh, Advs. for the Respondent.

ORDER

1. Leave granted.

2. The present appeal has been filed against the order passed by the High Court, reversing the order dated 07.06.2025, passed by the learned Chief Judicial Magistrate, Kamrup, Guwahati, and setting aside the bail, granted to the appellants, inter alia holding that the due procedure, contemplated under the BNSS, 2023, has been duly complied with.

3. The appellants-accused persons, before us, are the father and the son. The allegation, against them, is that they are involved in fraudulent availment of Input Tax Credit (ITC), which is an offence punishable under Section 132(1)(c) of the CGST Act, 2017. While the learned Chief Judicial Magistrate, vide order dated 07.06.2025, was pleased to release the appellants on bail and hold that the safeguards, provided under the BNSS, 2023, have not been complied with, the High Court, vide the impugned order, has reversed the same with a clear finding that the grounds of arrest, along with relevant documents, have been served to the arrestees, appellants herein, who have acknowledged the same. Intimation of arrest was given, to the wife of appellant No.1 and mother of appellant No.2, which has been acknowledged by her, and the entire proceedings have been videographed and due information has been given to her. The following is the specific finding of the High Court in this regard:-

“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 p.m. 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 the intimations (Notice to Relatives) of the arrests of the respondents were immediately given to Smt Vandana Choudhary at 11:00 PM on 05.06.2025, who happens to be the wife of respondents 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.”

4. Though the learned counsel, appearing for the appellants, would vehemently contend that the grounds of arrest have not been furnished to the relatives of the appellants, we do not find that there is any procedural lapse involved, to the prejudice of the appellants, warranting interference with the impugned order. However, we take note of the nature of the offence committed.

5. As mentioned earlier, the appellants are the father and the son. Appellant No.2, who is the son, is stated to be a student. Some custodial interrogation, of the appellants, has already taken place in West Bengal. In such view of the matter, we set aside the impugned order, insofar as appellant No.2 is concerned, by restoring the order dated 07.06.2025 passed by the learned Chief Judicial Magistrate.

6. We are conscious of the fact that the investigation is not complete and the respondentUnion of India is of the view that custodial interrogation, of appellant No.1, is required.

7. In such view of the matter, we grant custodial interrogation, of appellant No.1, for consecutive days starting from the 28^th of January, 2026 to the 31^st of January, 2026 till 5 p.m.

8. Accordingly, the interim custody, in the aforesaid terms, is granted, qua appellant No.1, to the respondent-Union of India. Thereafter, he shall be released. The Trial Court shall impose such conditions, on appellant No.1, as may be necessary. The appeal stands disposed of, in the aforesaid terms, insofar as appellant No.1 is concerned.

9. Insofar as appellant No.2 is concerned, the appeal stands allowed.

10. Needless to state that both the appellants will have to cooperate with the investigation till its conclusion. Pending application(s), if any, shall stand disposed of.