Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 14TH DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944 WP(C) NO. 26712 OF 2022 PETITIONERS:
1 AZHAR ALI P U AGED 27 YEARS, SON OF USMAN PULAVATH, KANDANTHARA, ALLAPRA P.O, VENGOLA., ERNAKULAM, PIN - 683556 2 RINSHAD M A AGED 29 YEARS, SON OFABDULKARIM MADAVANA HOUSE, PALLIIKAVALA, MUDICKAL P.O., PERUMBAVOOR, ERNAKULAM, PIN - 683547 BY ADVS.
K.P.PRADEEP HAREESH M.R.
T.T.BIJU T.THASMI M.J.ANOOPA SANU S MALAKEEL RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY(TAXES) GOVERNMNET SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 COMMISSIONER OF KERALA STATE GST KERALA STATE GST DEPARTMENT TAX TOWERS, KILLIPALAM, KARAMANA.P.O.
THIRUVANANTHAPURAM, PIN - 695002 3 STATE TAX OFFICER (INVESTIGATION BRANCH) KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, KOTTAYAM, PIN - 686002 4 GOODS AND SERVICE TAX COUNCIL GOVERNMENT OF INDIA OFFICE OF THE GST COUNCIL SECRETARIAT 5TH FLOOR, TOWER II, JEEVAN BHARTI BUILDING, JANPATH ROAD, CONNAUGHT PLACE, NEW DELHI-110 001 REPRESENTED BY ITS ADDITIONAL SECRETARY, PIN - 110001
W.P (C) No.26712/2022 -2- 5 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS NORTH BLOCK, NEW DELHI- 110001, REPRESENTED BY ITS CHAIRMAN, PIN - 110001 BY ADV RAJESH KUMAR T.K OTHER PRESENT:
ADV. THUSHARA JAMES (SR GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P (C) No.26712/2022 -3- J U D G M E N T The petitioners have approached this court seeking the following reliefs;
"(i) To call for the records leading to issue Exts.P1, P1 (a), P1 (b),P2 and P2 (a) summons issued by the 2nd respondent to the petitioners and issue a Writ of Certiorari, or any other writs or order or direction to quash Exts.P1, P1 (a), P1 (b),P2 and P2 (a) summons (ii) To declare that the provisions of Section 69 and Section 70 of the Central Goods and Service Tax Act, 2017 and Kerala State Goods and Service Tax Act, 2017 to the extent of granting unfettered power of arrest of a person, without any general guidelines, alleging the violations of provisions of law; are arbitrary and unconstitutional.
(iii) To issue a writ of mandamus or any other writs or order or directions, granting pre-arrest protection to the petitioners and to direct the 2nd and 3rd respondents herein not to arrest the petitioners; and if arrested to release on bail, on appropriate conditions ordered by this Hon'ble Court, considering the facts and circumstances of the case.” 2.
When this matter is taken up for consideration it is submission of the learned Senior Government Pleader appearing for the State G.S.T Department that the petitioners were found involved in making clandestine arrangement and documents to make it appear that there was movement of goods resulting in substantial revenue being lost to the State on account of false claims for tax credit etc. It is submitted that the petitioners were found involved in other similar offences earlier and the persons who involved themselves along with the petitioners were also involved in similar offences earlier. It is submitted that the writ petition has become infructuous as the petitioners have been arrested and is presently in judicial custody. It is submitted that prayers 1 and 3 are clearly infructuous and the 2nd
W.P (C) No.26712/2022 -4- prayer relates to the declaration sought by the petitioners that certain provisions of the CGST/SGST Acts are invalid and unconstitutional. It is submitted that a consideration of those reliefs is purely academic in view of the fact that the petitioners have already been arrested.
3.
The learned counsel appearing for the petitioners refer to the hearing history of the writ petition and states that the writ petition was adjourned from time to time at the request of the State for filing counter affidavit etc. and without even filing a counter affidavit the petitioners were arrested on 08-11-2022. It is submitted that the bail application of the petitioner was rejected by finding that it is not maintainable in the light of the judgment of the Supreme Court in P.V.
Ramana Reddy v. Union of India; 2020 SCC OnLine TS 472. It is submitted that a reading of the aforesaid judgment itself suggest that will be open to the petitioners to seek relief under Article 226 of the Constitution of India. It is submitted that it is grossly unfair for the State officers to have arrested the petitioners at a time when the writ petition was pending consideration before this court.
4.
Having heard the learned counsel appearing for the petitioner, the learned Senior Government Pleader appearing for the State and Adv. Rajeshkumar T.K for the CGST Department, I am of the view that the writ petition has become substantially infructuous as reliefs 1 and 3 are those which cannot be granted on account of the fact that the petitioner has now been arrested. As far as the relief No.2 is concerned that relates to the challenge to certain provisions of CGST/SGST Act giving power to the officials to arrest and detain a person provided certain circumstances exist. It is the argument of the learned counsel for the petitioners
W.P (C) No.26712/2022 -5- that these powers are drastic and give rise to the possibility of abuse. It is submitted that the provisions are arbitrary and unconstitutional.
5.
It is settled law that statutory provisions can be challenged only on three specific grounds being the following;
(1) Violation of Fundamental Rights (2) Lack of legislative competence (3) Violation of the basic structure doctrine.
The principle of manifest arbitrariness is the latest addition to the aforesaid grounds flowing from the judgment of the Supreme Court in Shayara Bano and others v. Union of India and others; (2017) 9 SCC 1. In the facts and circumstances of this case, prima facie, I am of the opinion that none of the aforesaid grounds available to the petitioners to challenge the aforesaid provisions in question. Mere possibility of abuse is no ground to set aside a statutory provision.
However, the learned counsel for the petitioners state that these issues may be left open for adjudication in appropriate proceedings.
6.
Having regard to the facts and circumstance of the case and the submissions made and the findings recorded above, this writ petition is closed without considering relief No.2 sought for the petitioners and leaving it open to be considered in appropriate proceedings.
Sd/- GOPINATH P.
JUDGE AMG
W.P (C) No.26712/2022 -6- APPENDIX OF WP(C) 26712/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SUMMONS NO.IB.K/INT-14/21-22 DATED 03-06-2022 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER Exhibit P1(a) TRUE COPY OF THE NOTICE NO.IB.K/INT-14/21-22 DATED 08-06-2022 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER Exhibit P1(b) TRUE COPY OF THE NOTICE NO.IB.K/INT-14/21-22 DATED 20-06-2022 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER Exhibit P2 TRUE COPY OF THE NOTICE NO.IB.K/INT-14/21-22 DATED 03-06-2022 ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER Exhibit P2(a) TRUE COPY OF THE NOTICE NO.IB.K/INT-14/21-22 DATED 03-06-2022 ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER