Hemang Bipin Varaiya vs. The State Of Maharashtra Through The Chief Secretary

Held

The Court held that the arrest of the Petitioner on September 17, 2025, and the subsequent remand orders were illegal. The Court found that the Assistant Commissioner of State Tax failed to adhere to the procedure laid down in Section 35 of the BNSS, 2023, and the directives of the Apex Court in Arnesh Kumar and Satender Kumar Antil. The Petitioner had communicated his inability to attend the proceedings on September 12, 2025, due to health and family reasons, and had requested an extension. The Court noted that the arresting officer did not record any reasons for the arrest, despite issuing a notice under Section 35(3) of the BNSS, 2023, and despite the Petitioner's communication. The Court reiterated that arrest is a draconian step, and extreme caution must be exercised when the offence is punishable with imprisonment up to or less than seven years. The Court referred to its earlier decision in Chandrashekhar Bhimsen Naik v/s. State of Maharashtra, where statutory non-compliance of the procedure prescribed in BNSS, 2023, proved fatal. Since the Petitioner was already released on bail, the Court restricted itself to declaring the arrest and subsequent remand orders as illegal. The Petitioner was granted liberty to seek further remedies.

Facts

The Petitioner, Hemang Bipin Varaiya, proprietor of M/s. Mahavir Metal Industries, is engaged in manufacturing and trade of metals. Following a search and seizure operation on September 1, 2025, by the Assistant Commissioner of State Tax, Kalyan, the Petitioner's residence and business premises were searched on September 3, 2025. The Petitioner was issued a summons under Section 70 of the Maharashtra Goods and Services Tax Act, 2017, for inquiry into suspected non-genuine business activities. Subsequently, on September 8, 2025, a notice was issued under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, directing his appearance on September 11, 2025, in connection with alleged availing of ineligible Input Tax Credit (ITC) of Rs. 17,88,58,156/- from 2019-20 to 2024-25. The Petitioner, citing health and family issues, requested a 15-20 day extension via email on September 11, 2025. Despite this, he was arrested on September 17, 2025.

Key Issues

1. Whether the arrest of the Petitioner on September 17, 2025, by the Assistant Commissioner of State Tax, Kalyan, was illegal due to non-compliance with the procedure prescribed under Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, particularly when the alleged offence is punishable with imprisonment for a term less than seven years? Petitioner's Contention: The Petitioner argued that the arrest was illegal as the Assistant Commissioner failed to follow the mandatory procedure laid down in Section 35 of the BNSS, 2023. He relied on the Apex Court's decisions in Arnesh Kumar v/s. State of Bihar and Satender Kumar Antil v/s. Central Bureau of Investigation, which emphasize the necessity of recording reasons for arrest, especially when the offence is punishable with imprisonment less than seven years. The Petitioner contended that issuance of a notice under Section 35(3) of BNSS, followed by an arrest without recording specific reasons as required by Section 35(1)(ii)(a) to (e), renders the arrest illegal. Revenue's Contention: The learned APP, Ms. Shinde, submitted that the arrest was necessitated because the Petitioner did not attend the proceedings on September 12, 2025, as per the notice, and did not appear thereafter. The judgment does not record any further arguments from the Revenue.