Abhishek Kumar vs. Union Of INDIA Thru. Deptt. Revenue Directorate GST Intelligence Lko.

HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW CRIMINAL MISC. BAIL APPLICATION No. - 11990 of 2025 Court No. - 15 HON'BLE KARUNESH SINGH PAWAR, J. 1.Heard Mr. S.C. Mishra, learned Senior Advocate, assisted by Mr. Mukesh Kumar Tiwari and Mr. Rajendra Kumar Dubey and Mr. Dheeraj Srivastava, learned counsel for the respondent and perused the record. Counter and rejoinder affidavits filed today are taken on record. 2.It is alleged in the prosecution case that the applicant/accused Abhishek Kumar issued fake GST invoices to various firms from his firm without actually supplying manpower, telecom services and other taxable services and fraudulently passed Input Tax Credit (ITC) to M/s BSN Intotech Pvt. Ltd. and other firms and thereby violated clauses (a), (b) and (i) of sub- section (1) of Section 132 of the CGST Act and caused loss to the Government exchequer to the tune of approximately Rs. 18 crores and constituted an offence under sub-section 5 of Section 132 of the CGST Act. The applicant/accused has evaded tax by creating fake invoices and giving them to various firms and taking huge commission. 3.Mr. S.C. Mishra, learned senior counsel appearing for the applicant submits that mandatory provision of 69 of Central Goods & Services Tax Act, 2017 (for short, 2017 Act) has not been followed as no 'reason to believe' has been formed or supplied to the applicant which vitiates his arrest. Till date, no complaint/charge sheet has been filed against the accused applicant. It is submitted that prosecution has been initiated Versus Counsel for Applicant(s) : Mukesh Kumar Tewari Counsel for Opposite Party(s) : Digvijay Nath Dubey, Dheeraj Srivastava Abhishek Kumar .....Applicant(s) Union Of India Thru. Deptt. Revenue Directorate Gst Intelligence Lko. .....Opposite Party(s) without invoking proceedings under sections 73 and 74 of 2017 Act. There is no ascertainment of tax liability before the arrest of the applicant. Even the provisions of Section 122 of 2017 Act have not been invoked prior to the arrest of the applicant which makes the arrest illegal. The said provision provides penalty for certain offences. The applicant has appeared thrice before the department and has cooperated in the investigation. The data which was in possession of the applicant has been seized by the investigating authority. Hence, no tampering is possible by the applicant in the data and as such judicial remand was not required. The applicant has fully cooperated in the investigation. Even section 35 BNSS has not been followed as maximum punishment for the offence is upto five years. It is further submitted that the arrest memo does not record any reason, rather it appears to be a cyclostyle format showing total non-application of mind. Further, the arrest memo does not record any satisfaction regarding necessity of arrest. In this context, learned senior counsel has relied on the judgment in Satender Kumar Antil versus Central bureau of Investigation and another (2022)10 SCC 51. Mr. Mishra has also relied on Radhika Agarwal versus Union of India and others (2025)6 SCC 545, Siddharth versus State of U.P. (2022)1 SCC 676, Daulat Samirmal Mehta versus Union of India (2021)87 GSTR 1, Deepanshu Srivastava versus Union of India 2024 SCC OnLine All 2665, Crl. Misc. Bail application No.21848 of 2022 Allahabad High Court, Writ Tax No.834 of 2023 Ashish Kakkar versus Union of India and another (Allahabad High Court) and Crl. Misc. Bail Application No.26376 of 2023 Ravinder Nath Sharma versus Union of India. Learned counsel for the applicant submits that the applicant has no previous criminal history. The applicant is in jail since 31.10.2025. It is further submitted that there is no possibility of the applicant of fleeing away after being released on bail or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail. BAIL No. 11990 of 2025 2 4.Learned counsel for the respondent has vehemently opposed the prayer for bail. He submits that the offences are not compoundable. The applicant during the custody has not cooperated. In support of his contention, he has provided the application for recording supplementary statement of the accused applicant given by the department which is taken on record. He has pointed out that the investigating officer has made an endorsement dated 24.11.2025 that the applicant Abhishek Kumar has expressed his inability to record his statement and thus, he has not cooperated at all. He further submits that Section 74 of 2017Act is not mandatory. He has also relied on Radhika Agarwal' case (supra) 5. I have considered the submission and perused the record. A perusal of the application dated 13.11.2025 for permission to record supplementary statement shows that on this application, permission has been granted by the Special Chief Judicial Magistrate, Lucknow on the same date, i.e. on 13.11.2025. The bail application of the applicant was rejected on 24.11.2025. On 24.11.2025, an endorsement has been made after 11 days of the permission by the investigating agency that the applicant has showed his unwillingness to give his statement. The applicant was sent to jail on 31.10.2025 before 13 days of the application for taking supplementary statement. Although, permission was granted by the court on 13.11.2025, however, the investigating officer awaited for 10 more days and went to the jail for recording the statement of the accused applicant, which is just only after rejection of the bail application on 24.11.2025. Submission of learned senior counsel, thus, seems to have weight that only after rejection of the bail application, the investigating officer just to fill up the lacuna has recorded his objection. From a perusal of the arrest memo, it does not appear that any reason has been recorded regarding the ground of arrest. It is admitted between the parties that 'reasons to believe' have not been furnished to the applicant by the department. In this context, the judgment in Radhika Agarwal's case (supra) becomes relevant where it has been held that 'reasons to believe' are to be furnished to the arrestee such that they can challenge the legality BAIL No. 11990 of 2025 3 of their arrest. Relevant para 34 of the said judgment is extracted below : " 34. 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 22, 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 belleve" are permissible. The relevant portion reads: (SCC pp. 278-79, paras 41-43) "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 to believe" should be furnished to the arrestee to enable him to exercise his right to challenge the validity of arrest." Not only this, so far as the obligation of the arresting officer and the right of the accused are concerned, the findings and ratio recorded in paras 32 to 49 of the judgment in Radhika Agarwal's case (supra) have been held